District of Columbia Vote in House of Representatives

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The District of Columbia has never had voting representation in the United States Congress, but efforts are currently under way to enact a statute that would give the District one vote in the House of Representatives, though not in the Senate. This proposal for a statute to give the District of Columbia voting rights in the House is called the "DC Vote" proposal. Advocates of this approach assert[1] that it is constitutional, but its constitutionality is disputed.

Few people dispute that it would be constitutional for Congress to (1) grant full statehood to Washington D.C., or (2) retrocede most of the territory of Washington D.C. back to the State of Maryland, or (3) propose a constitutional amendment granting Washington D.C. a vote in the House of Representatives. However, constitutional law experts do have concerns about the proposed "DC Vote" solution, which would instead give D.C. citizens a vote in Congress by a simple statute like the DC Fair and Equal House Voting Rights Act of 2007 (discussed below).

Washington D.C. already has a delegate in the House of Representatives. That delegate is currently Eleanor Holmes Norton, but she does not have a vote on the House floor. Under the DC Vote proposal, the District of Columbia would be given a full voting seat in the House of Representatives and Utah would be given an additional House member.

The DC Vote proposal would also have an impact on the Electoral College. Under the DC Vote proposal, the voting power of the District's citizens in presidential elections would remain unchanged at three electoral votes (i.e. 193,843 people per electoral vote), pursuant to the 23rd Amendment. The DC Vote proposal, by awarding Utah an additional House seat, would result in that state gaining an additional electoral vote.

Contents

[edit] "Taxation without representation"

The citizens of Washington D.C. are able to vote in presidential elections, but they have no voting representative in Congress. Still, citizens of Washington D.C. are required to pay federal taxes. The notion of "taxation without representation" was a rallying cry during the American Revolution, and it continues to be an argument in favor of a statute granting a vote in the House; however, it is also an argument in favor of the various other solutions to this problem such as statehood, retrocession, and constitutional amendment.

The issue of taxation without representation in the District of Columbia is not new. For example, Chief Justice John Marshall addressed it in an 1820 opinion for the Supreme Court, as follows:

The difference between requiring a continent, with an immense population, to submit to be taxed by a government having no common interest with it, separated from it by a vast ocean, restrained by no principle of apportionment, and associated with it by no common feelings; and permitting the representatives of the American people, under the restrictions of our constitution, to tax a part of the society...which has voluntarily relinquished the right of representation, and has adopted the whole body of Congress for its legitimate government, as is the case with the district, is too obvious not to present itself to the minds of all. Although in theory it might be more congenial to the spirit of our institutions to admit a representative from the district, it may be doubted whether, in fact, its interests would be rendered thereby the more secure; and certainly the constitution does not consider their want of a representative in Congress as exempting it from equal taxation.[2]

In the years since Marshall wrote those words, the District of Columbia has achieved voting rights in presidential elections, and its delegate in the House of Representatives has also achieved voting rights in committee.

[edit] Primary constitutional provisions at issue

The second sentence of the U.S. Constitution (after the Preamble) states:

The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.

One of the legal issues now is whether Congress can, by statute, affect how this clause (Article I, Section 2, Clause 1) of the Constitution should be applied. Proponents of a statute giving Washington D.C. a vote in the House say that Congress has the requisite power under Article I, Section 8, Clause 17 of the Constitution:

The Congress shall have Power....To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States....

There are other pertinent constitutional provisions as well. The following words can be found in both Article I, Section 2, Clause 3 of the original unamended Constitution, as well as in Section 2 of the Fourteenth Amendment: "Representatives ... shall be apportioned among the several States ... according to their respective Numbers...."

The Twenty-third Amendment to the United States Constitution is also relevant, since it gives D.C. residents a vote in presidential elections. Likewise, Article IV, Section 3, Clause 1 is relevant, since it gives Congress power to grant statehood:

New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.

These seem to be the primary pertinent parts of the Constitution. But, there are other constitutional provisions that may come into play (e.g. the provisions in Article V related to new amendments).

[edit] Legal arguments for and against

Professor Jonathan Turley testified on September 14, 2006 at House Judiciary Committee Hearings on this subject,[3] and Turley has also been quoted in the press:

Jonathan Turley, George Washington University law professor, believes the D.C. portion of the bill is "flagrantly unconstitutional" because the Constitution gives representation to "the people of the several states." It would take a constitutional amendment to give the district unquestioned congressional and Senate representation, he said. Addressing it legislatively means another Congress could always revoke the voting privilege later. "This is the equivalent of having Rosa Parks go to the middle of the bus, the ultimate compromise of principle," he said, referring to the civil rights protest Parks launched when she refused to move to the back of a bus, as required by Jim Crow laws. "Either D.C. residents are entitled to be full citizens or not."[4]

Other constitutional law experts have reached a different conclusion. For example, Patricia Wald and Kenneth Starr have written: "There is nothing in our Constitution's history or its fundamental principles suggesting that the Framers intended to deny the precious right to vote to those who live in the capital of the great democracy they founded."[5] Viet Dinh and Adam Charnes have also written on this subject, in favor of a statutorily granted House vote to the District.[6] Turley calls the analyses of Starr and Dinh, "uncharacteristically liberal interpretations of the text of Article I."[7]

Even in the absence of an enfranchising federal statute, some DC citizens have argued that their disenfranchisement is unconstitutional. However, that argument was rejected in the case of Adams v. Clinton,[8] in which the federal district court stated:

Such evidence as does exist ... indicates a contemporary understanding that residents of the District would not have a vote in the national Congress. At the New York ratifying convention, for example, Thomas Tredwell argued that "[t]he plan of the federal city, sir, departs from every principle of freedom . . . subjecting the inhabitants of that district to the exclusive legislation of Congress, in whose appointment they have no share or vote."

In contrast, there is no direct evidence that any of the framers believed that citizens of the federal district could have a vote in Congress. According to John Fortier, "Only the people of the states may choose members of Congress, and the District of Columbia is not a state. This language is confirmed again and again in the Constitution...."[9]

Even if a statute could legitimately give the District of Columbia a vote in only one of the two houses of Congress, questions would remain about the legitimacy of apportioning an additional representative for Utah. Senator John Kerry has declined to support the DC Vote proposal: "I would not sign the congressman's bill into law because I think that bill would create all kinds of side issues about reapportionment across the country....Given the current games that have been played with that, I think that would be very dangerous."[10]

The voting power of each citizen of Washington D.C. in presidential elections is currently more than three times that of Texas citizens, according to a list of U.S. states by population. However, the voting power of each citizen of Washington D.C. in presidential elections is currently less than that of Wyoming citizens.

[edit] DC Fair and Equal House Voting Rights Act of 2006

The "DC Fair and Equal House Voting Rights Act of 2006"[11] was the bill to give the District of Columbia voting representation in the United States House of Representatives.

The bill was proposed by Rep. Thomas M. Davis (R) of Virginia, and received support from 24 other co-sponsors. In the 109th Congress, it was introduced on May 3, 2005 and more recently on May 16, 2006. The bill would have given the District of Columbia its first and only representative in the House of Representatives with full voting privileges. In order to mollify Republicans (a District House seat would almost certainly be occupied by a Democrat), the bill would have granted one more seat to Utah (which fell just a few hundred residents short of a fourth House seat in the 2000 census), and the Utah seat would almost certainly go to a Republican. This would have temporarily raised the number of members of the House to 437, from 435, until the 2010 census and the following elections. More recent revisions to the proposal would make the increase to 437 permanent, in order to minimize the impact after the 2010 Census. Under Article I, Section 2, Clause 3 of the United States Constitution, the number of Representatives may not exceed one per every 30,000 citizens; the current limit on the size of the House, 435, was set in 1929, and could in theory be raised to more than 10,000 based on the current United States population.

Despite significant support,[12] the D.C. Voting Rights Act was not put to a vote in the 109th Congress. However, it has been reported that Speaker Nancy Pelosi plans to push for approval of a D.C. voting rights bill during 2007, in the 110th Congress. To facilitate the process, the Utah state legislature is reported to have met in a special session in order to redraw the state's House districts (indicating that the fourth seat will not be an At-Large seat as earlier proposed).[13][14] The bill would appear to have a greater chance of passing early in the 110th Congress than it had in the previous Congress, due to a change of leadership.

The proposal for a D.C. House vote would, to some extent, reflect the original logic that Senators are supposed to represent states (which the District is not), while members of the House represent the people. Under the DC Vote proposal, the District would still be treated differently than a state for purposes of House representation, even if the bill passed. This is because the bill specifically states the number of House members from D.C. cannot exceed one, regardless of population. In the unlikely event that the population of D.C. approaches that of two districts, there may again be calls for a bill to give equal representation.

The DC Vote proposal would also have an impact on the Electoral College. Since D.C. already has an electoral vote for the House member they would have if they were a state, the bill would create only one more electoral vote, which would go to whichever state has the new seat. In 2008 that would be Utah, so in the very likely event Utah goes for the Republican candidate for President, the Republicans would get one electoral vote more than otherwise but the Democrats would have the same as otherwise. One additional electoral vote would also bring the total to 539, making a tie impossible unless an elector abstains or votes for a third party.

[edit] District of Columbia House Voting Rights Act of 2007

On January 9, 2007, the "DC Fair and Equal House Voting Rights Act of 2007" (H.R. 328) was introduced in the House of Representatives.[15] On January 24, 2007 the Congressional Research Service issued a report[16] concluding that, "it would appear likely that the Congress does not have authority to grant voting representation in the House of Representatives to the District."[17]

On March 13, 2007, H.R. 1433, titled "District of Columbia House Voting Rights Act of 2007"[18] passed the House Committee on Oversight and Government Reform by a vote of 24-5.[19]. The bill would permanently increase the size of the House by two members. One seat would go to the District of Columbia and the other seat would go to the next state in line to get a congressional seat. Based on the 2000 decennial census and apportionment calculations, Utah would get the second seat until the reapportionment taking place after the 2010 Decennial Census.

The House Judiciary Committee approved H.R. 1433 on March 15, 2007 by a vote of 21-13, and the White House announced opposition to the bill.[20]

[edit] Footnotes

  1. ^ DCVote.org
  2. ^ Loughborough v. Blake, 18 U.S. 317 (1820) (also mentioning that "representation is not made the foundation of taxation").
  3. ^ House Judiciary Committee, Subcommittee on the Constitution,Legislative Hearing on H.R. 5388, the "District of Columbia Fair and Equal House Voting Rights Act of 2006
  4. ^ Johanna Neuman, Plan would give D.C. a House vote, Los Angeles Times (November 22, 2006)
  5. ^ Patricia Wald and Kenneth Starr, Congress Has the Authority to Do Right by D.C., Washington Post (September 17, 2006). Contra Matthew Franck, Hammering to Fit, National Review (September 18, 2006)(rebutting Wald and Starr)
  6. ^ Viet Dinh and Adam Charnes, The Authority of Congress to Enact Legislation to Provide the District of Columbia With Voting Representation in the House of Representatives (November 2004)
  7. ^ Jonathan Turley, Statement for the Record, Legislative Hearing on H.R. 5388, the "District of Columbia Fair and Equal House Voting Rights Act of 2006 (September 14, 2006). It seems to be an uncharacteristic interpretation even for Wald. See Representation for the District of Columbia: Hearings Before the Subcomm. on Civil and Constitutional Rights of the Comm. on the Judiciary, 95th Cong. 131 (1978) (statement of Assistant Attorney General Patricia M. Wald opining that "Article I was in part intended precisely to distinguish the Federal District from the States," and that "we do not believe that the word 'State' as used in Article I can fairly be construed to include the District under any theory of 'nominal statehood'").
  8. ^ Adams v. Clinton, 90 F. Supp. 2d 35 (2000) (citations omitted)
  9. ^ John Fortier, D.C. Colony, The Hill (May 17, 2006).
  10. ^ Spencer S. Hsu, Kerry Skeptical of Bill on D.C. Vote, Washington Post (May 15, 2004)
  11. ^ HR 5388, "District of Columbia Fair and Equal House Voting Rights Act of 2006," 109th Congress, 2d Session
  12. ^ See Plan Would Bring House Vote to D.C., NPR (May 11, 2006)
  13. ^ Eleanor Holmes Norton, Press Release: "Pelosi Tells Norton and Fenty She Wants Voting Rights Bill Passed Next Week" (November 30, 2006).
  14. ^ Sheridan, Mary Beth and Woodlee, Yolanda. D.C. Fights Clock, But Approval of Voting Bill Stalls, Washington Post (December 1, 2006)
  15. ^ Sheridan, Mary Beth. Bill to Give D.C. a Full Vote Is Revived, Washington Post (January 10, 2007).
  16. ^ Thomas, Kenneth. CRS Report for Congress: The Constitutionality of Awarding the Delegate for the District of Columbia a Vote in the House of Representatives of the Committee of the Whole.
  17. ^ Sheridan, Mary Beth. "Report Questions Constitutionality of Giving D.C. a Vote," Washington Post (2007-02-13).
  18. ^ H.R.1433, "District of Columkbia House Voting Rights Act of 2007" (110th Congress)
  19. ^ Mary Beth Sheridan. "Bill to Give D.C. Full House Vote Advances", Washington Post, March 14, 2007, p. B01.
  20. ^ Struglinski, Suzanne & Bernick, Robert. “White House opposes bill that would give Utah a 4th congressional seat”, Deseret News (2007-03-16).

[edit] External links

[edit] See also

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